United States District Court, W.D. New York
DECISION & ORDER
JONATHAN W. FELDMAN UNITED STATES MAGISTRATE JUDGE.
se plaintiff Ronald Samuels brings this 42 U.S.C. § 1983
action against Rochester police officers Darrel Schuitz,
Anthony DiPonzio, and Bernie Garcia (collectively
"defendants" or "the officers").
See Complaint (Docket # 1). Plaintiff claims that
the officers used excessive force when arresting him on May
2, 2008, in violation of the Fourth and Eighth Amendments.
pending before the Court is defendants' motion for
summary judgment, filed on June 20, 2016. Docket #
Plaintiff filed a response with the Court on September 9,
2016. Docket # 56. Defendants did not file a reply, and the
motion was thereafter deemed submitted on paper. For the
reasons that follow, defendants' motion is denied in part
and granted iii part.
to Comply with Local Rules: Before turning to the merits
of this motion, the Court must address the failure of defense
counsel to comply with the requirements of our Local Rules of
Civil Procedure and Second Circuit case law. Rule 56 (b) of
the Local Rules of Civil Procedure for the Western District
of Hew York provides in relevant part that
[a] ny party moving for summary judgment against a pro
se litigant shall file and serve, with the motion papers
a "Notice to Pro Se Litigant Regarding Rule 56
Motion for Summary Judgment" in the form provided by the
Court. Failure to file and serve the form notice shall result
in denial of the motion, without prejudice to proper renewal.
L.R. Civ. P. 56(b). Judges of this Court remind counsel of
this requirement by repeating it in all of our standard
scheduling orders involving pro se litigants.
indeed/ our scheduling orders provide counsel with a copy of
the required notice that must be attached to any dispositive
motion. See Docket # 18 at 4. The Second Circuit has
held that "[i]n the absence of such notice or a clear
understanding by the pro se litigant of the
consequences of failing to comply with Rule 56, vacatur of
the summary judgment [against a pro se party] is
virtually automatic." Irby v. New York City Transit
Auth., 262 F.3d 412, 414 (2d Cir. 2001).
counsel failed to attach the required notice here. There are
good reasons for the rule requiring that pro se
litigants be apprised of the potential for their case to be
dismissed without a trial if they do not submit affidavits or
admissible evidence raising triable issues of fact. It is not
"obvious to a layman that when his opponent files a
motion for summary judgment supported by affidavits he must
file his own affidavits contradicting his opponent's if
he wants to preserve factual issues for trial."
Graham v. Lewinski, 848 F.2d 342, 344 (2d Gir. 1988)
(quoting Lewis v. Faulkner, 689 F.2d 100, 102 (7th
Cir. 1982)) .
meager state of the current record unfortunately pays tribute
to why strict abidance to the local rule is so important to
the efficient administration of justice. Plaintiff's
response to the defendants' motion does not comply with
Rules 7 (a) (3) and 56 (b) of the Local Rules of Civil
Procedure, a fact that might have been held against plaintiff
had the defendants attached the required notice to their
moving papers. Moreover, the fact that plaintiff filed a
response does not change the analysis. "Where the proper
notice has not been given, the mere fact that the pro
se litigant has made some response to the motion for
summary judgment is not dispositive where neither his
response nor other parts of the record reveal that he
understood the nature of the summary judgment process."
Vital v. Interfaith Med. Ctr., 168 F.3d 615, 621 (2d
response to the motion for summary judgment is haphazard,
disorganized and inadequate. But absent service of the
required notice for pro se litigants, the Court
lacks confidence that plaintiff understands the nature of a
motion for summary judgment or the consequences of an
inadequate response. Nevertheless, despite the failure to
comply with the local rules, the Court has decided to address
the merits of defendants' motion for summary judgment
instead of simply denying the motion without prejudice to
renew upon compliance with Local Rule 56'(b) . I choose
to address the merits because first, this case has been
pending for so long and second, with one exception, the
record is sufficient for the Court to determine that summary
judgment on plaintiff's excessive force claim is not
Amendment Claim: The analysis required for determination
of a summary judgment motion in a case alleging excessive
force during an arrest is well established.
In order to establish that the use of force to effect an
arrest was unreasonable and therefore a violation of the
Fourth Amendment, plaintiffs must establish that the
government interests at stake were outweighed by "the
nature and quality of the intrusion on [plaintiffs']
Fourth Amendment interests." Graham v. Connor,
490 U.S. 386, 396 (1989) . In other words, the factfinder
must determine whether, in light of the totality of the
circumstances faced by the arresting officer, the amount of
force used was objectively reasonable at the time.
Id. at 397. The inquiry therefore "requires
careful attention to the facts and circumstances of each
particular case, including the severity of the crime at
issue, whether the suspect poses an immediate threat to the
safety of the officers or others, and whether he is actively
resisting arrest or attempting to evade arrest by
flight." Id. at 396. Given the
fact-specific nature of the inquiry, granting summary
judgment against a ...